Can the attorney general be fired from state cases?
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Can the attorney general be fired from state cases?

Date: September 28, 2007
By: Sarah D. Wire
State Capitol Bureau

JEFFERSON CITY - Twice in the last several months, the administration of Republican Gov. Matt Blunt has announced they had "terminated" the Democratic Attorney General Jay Nixon from high profile cases charging he had conflicts of interest. 

There's just one problem -- the attorney general's office says Nixon cannot be removed from his legal responsibility to defend the state.

The attorney general is responsible for representing the legal interests of the state and must "prosecute or defend all appeals to which the state is party" according to Missouri revised statutes.  Unlike other state-elected offices, however, the state Constitution does not delegate specific powers for the attorney general.

In the spring,  the Natural Resources Department sought to remove Nixon from the Taum Sauk reservoir collapse case. Then in late August, the state Health Director "terminated" Nixon from an ongoing lawsuit between the state and Planned Parenthood and said his support for abortion rights created a conflict of interest in defending the Missouri law. 

"I do not believe I could trust you to defend me and my department vigorously," Health Director Jane Drummond stated in a letter to Nixon. The letter also states the Health Department would be represented for free by a private attorney -- later identified as Dale Schowengerdt with Alliance Defense Fund, an organization founded by religious right organizations.

But the Attorney General's office spokesman, John Fougere, said as the state's attorney, Nixon cannot be fired or removed from a case. As a named defendant in the case, Nixon's office has continued to be involved with the Planned Parenthood case, which Schowengerdt said is not unusual.

Nevertheless, the Health Department has continued with its private attorney. "Each defendant is entitled to their own representation," Schowengerdt said. 
 
Both Nixon and the Health Department are named as defendants in the case -- Nixon because of his role as defender of Missouri statutes and the Health Department because it is the agency that would regulate abortion facilities under the law.

Fougere said the move by the Health Department is highly unusual.

"It's certainly not a frequent occurrence," Fougere said. "While there has been a lot of grandstanding, the bottom line is the Attorney General represents state agencies and will continue to do so."
 
MU Law Professor Richard Reuben agreed and said he is not sure if it is even possible to remove the state's Attorney General from a state case.
 
"The fact of the matter is he is the state's attorney," Reuben said.
 
Reuben said just because Nixon has a perceived conflict of interest does not ethically mean he should step down.
 
"What constitutes a conflict of interest can be a matter of perception, in a big state case like this bringing in a private attorney can help depoliticize it a bit," Reuben said. "But if the governor is the one deciding then the same kinds of allegations can be raised." 
 
Reuben said early campaigning by Nixon and Blunt should not affect their ability to do their jobs. Nixon is challenging Blunt for reelection.
 
"The positions are inherently political," Reuben said. "It doesn't make political a position that was already political." 

According to the Alliance Defense Fund web site, the groups purpose is "to protect the freedom of religion, guard the sanctity of human life, and preserve marriage and traditional family values."  James Dobson is listed on the organization's Web site as one of the founding leaders.

In March, the Natural Resources Department "fired" Nixon from representing the state in the Taum Sauk settlement case, but Fougere said the department has yet to actually hire outside representation.
 
In June, the Department attempted to have Nixon removed from the case through the Reynolds County Court, where the lawsuit is taking place, but was denied.

Nixon is still listed as the attorney of record for the case.

The state finding itself represented by potentially competing lawyers is not a new phenomenon.  A couple of years ago, Nixon filed a lawsuit against the state's Natural Resources Department in an effort to prevent sale of the KATY railroad bridge over the Missouri River in Boonville.